Sri Jayaram Reddy v. State of Karnataka & Ors. [Order dated 13.02.2014]

IN THE HIGH COURT OF KARNATAKA AT BANGALORE 

DATED THIS THE 13TH DAY OF FEBRUARY 2014 

BEFORE THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI 

R.F.A.No.2541 OF 2007 (DEC) 

BETWEEN: 

Sri Jayarama Reddy, Since dead by L.Rs. 

1. Sri H.V.Srinivasa Reddy, Aged about 68 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.2, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

2. Sri H.V.Muniswamy Reddy, Aged about 64 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.2, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

3. Sri H.V.Venkatesha Reddy, Aged about 62 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.95, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

4. Sri H.V.Gurumurthy Reddy, Aged about 64 years, Brother of late Jayarama Reddy, Son of late H.M.Veerappa Reddy, Residing at No.2, 1st Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

5. Sri H.V.Babu Reddy, Aged about 58 years, Son of late H.R.Venkataswamy Reddy, Residing at No.138, 3rd Cross, Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

6. Smt.Sarojamma, Aged about 68 years, Wife of Late Jayarama Reddy. 

7. Sri J.Chandrashekar, Aged about 45 years, Son of late Jayarama Reddy. 

8. Sri J.Vishwanath, Aged about 35 years, Son of late Jayarama Reddy. Near Maruthi Brick Works, Chinnappanahalli, Marathahalli Post, Bangalore - 560 037. 

... Appellants 

 (By Sri S.Channaraya Reddy and Sri C.Shankar Reddy, Advocates) 

AND: 

1. State of Karnataka, By its Chief Secretary, Vidhana Soudha, Bangalore - 560 001. 

2. The Deputy Commissioner, Bangalore Urban District, Bangalore - 560 001. 

3. Smt.Subhashini S. Aged about 44 years, W/o.Late N.Venugopal Reddy, Residing at No.539, Near Railway Track, Munnekolala, Marathahalli Post, Bangalore - 37. 

4. Sri R.Lokesh, Aged about 37 years, Son of N.Ramaswamy, Residing at No.176/2, Patel Narayanaswamy Layout, 4 Siddapura, Ramagondanahalli Post, Bangalore - 560 066. 

5. Sri K.Obul Reddy, Aged about 48 years, Son of late K.Venkata Reddy. 

6. Smt.K.Sulochanamma, Aged about 35 years, Wifeof Sri K.Obul Reddy, Both impleading applicants 5 and 6 are residents of No.5, 1st Cross, Ayyappa Layout, Behind KMF, Munnekolalu, Marathahalli Post, Bangalore - 560 037. 

7. Sri P.Abhishek Reddy, Aged about 30 years, Son of Prasad Reddy K.R. Residing at No.32/A, RBI Colony, 2nd Cross, 3rd Block, Jayanagar East, Bangalore - 560 011. 

... Respondents

(By Smt.B.P.Radha, HCGP for R1 & R2: Sri L.Harish Kumar, Advocate for R3 - R7) 

This RFA is filed under Section 96 CPC, against the judgment and decree dated 13.11.2007 passed in OS.No.4922/2001 on the file of the IX Additional City Civil and Sessions Judge, Bangalore (CCH-10), dismissing the suit for declaration and injunction and etc. This RFA, coming on for final disposal, this day, the Court delivered the following: 

JUDGMENT

The plaintiff has preferred this appeal aggrieved by the dismissal of the suit (O.S.No.4922/2001) by the Court of the IX Additional City Civil and Sessions Judge, Bangalore by its judgment and decree, dated 13.11.2007.

2. The facts of the case in brief are that the appellant - plaintiff claimed that his father had occupied the suit schedule property unauthorisedly prior to 1963. The revenue authorities even levied the T.T. fine for the unauthorised occupation and cultivation of the land by the appellant's father. On the demise of his father, the appellant continued to be in possession of the suit schedule property. He filed the suit seeking the relief of declaration that he has perfected his title by way of adverse possession. The Deputy Commissioner, Bangalore Urban District filed the written statement denying the plaint averments and allegations. It was stated therein that the land bearing Sy.No.99 measures 10 acres 30 guntas and that it is a gomal land. The T.T. fine is levied on those who cultivate the Government lands unauthorisedly. It does not give any right to them to claim the title or possession. The land at Sy.No.99 is used up for the formation of the sites which are distributed to the siteless persons. The RTC for the year 2004-2005 shows that the schedule properties are in the possession of the Government.

3. Based on the rival pleadings, the Trial Court formulated the following issues:

"1. Whether the plaintiff proves that he has been in continuous possession and enjoyment of the suit land from the time of his father adverse to the interest of defendants as pleaded in the plaint?

2. Whether the plaintiff proves that he has perfected his title to the suit land by way of adverse possession as pleaded in the plaint?

3. Whether the defendants prove that the suit land they have already formed the sites and allotted them to the poor persons free of cost and they have put up the houses in the said sites as contended in the written statement?

4. Whether the defendants prove that the suit is not properly valued and the court fee paid on the plaint is insufficient?

5. Whether the plaintiff proves that he is entitled for the declaration of his title to the suit land as sought for in the suit?

6. What order or decree?"

4. On behalf of the appellant, he himself and two others were examined as PWs. 1 to 3 marking the documents at Exs. P1 to P14. The official of the second defendant was examined as DW1 marking 6 documents in the Ex. D series. On considering the pleadings, oral and documentary evidence placed on its record and applying the case-law, the Trial Court answered the contentious issues against the appellant and dismissed the suit. Aggrieved by the same, this appeal is filed.

5. Sri C.Shankar Reddy, the learned counsel for the appellant submits that the respondents have not produced any document to show as to how many sites are formed out of which lands, how many sites are allotted, to whom they are allotted, etc.

6. Sri Reddy submits that the revenue records from 1963-1973 show the possession of the appellant's father till 1970. The Tahsildar passed the eviction order which was however set aside by the Assistant Commissioner in the appeal filed by the appellant's father. He submits that only that part of the Tahsildar's order, which imposed the T.T.fine, was upheld by the Assistant Commissioner. Thereafter no fresh eviction proceedings are initiated. He submits that the Assistant Commissioner's said order is at Ex.P10.

7. He denies the official conversion that the land at Sy.No.99 measures 10 acres 30 guntas. According to him, all the lands standing at Sy.Nos. 98, 99, 100 and 101 together measure 10 acres 30 guntas. He submits that the land at Sy.No.99 measured 2 acres 30 guntas. Later it is shown in the revenue records that it measures 3 acres.

8. He submits that this Court by its interim order, dated 07.01.2008 restrained the respondent Nos. 1 and 2 from disturbing the possession of the schedule property of the appellant on forming the view that it is the appellant who is in possession of the suit schedule property. He submits that the appellant has already made two I.A.s. for the appointment of the Court Commissioner for inspecting the lands in question.

9. Sri Reddy read out the Head Note (B) of the decision of the Hon'ble Supreme Court in the case of KSHITISH CHANDRA BOSE vs. COMMISSIONER OF RANCHI reported in AIR 1981 SC 707. It is as follows:

"(B). Limitation Act (36 of 1963), Articles 64, 65 - Adverse possession - Proof - Possession must be open and without any attempt at concealment - Not necessary, however, that possession must be so effective as to bring it to the specific knowledge of owner. Judgments of Patna High Court dated 17.2.1967 and 30.9.1970, Reversed."

10. He also read out paras 11 and 12 from the Apex Court's judgment in the case of BALAKRISHAN vs. SATYAPRAKASH AND OTHERS reported in AIR 2001 SC 700, which is extracted hereinbelow:

"11. In our view this conclusion of the High Court is erroneous. The fact remained that in spite of order of the Tahsildar against the appellant which was not acted upon nor executed, the appellant continued in possession of the suit land and therefore, the continuity of his possession of the suit land was neither interfered nor lost. Mere passing of an order of ejectment against a person claiming to be in adverse possession neither causes his dispossession nor discontinuation of his possession which alone breaks the continuity of possession.

12. The fact that under Section 250(2) of the M.P.L.R. Code read with Section 38 thereof the Tahsildar was bound to restore possession of the suit land would, in our view, make no difference and it is difficult to accept the contention that failure of the Tahilsdar in handing over possession would have the effect of causing discontinuation of possession of the suit land by the appellant so as to prevent such possession from ripening into adverse possession after statutory period."

11. The learned counsel has also relied on this Court's decision in the case of ALLA BAKSH vs. MOHD. HUSSAIN reported in ILR 1996 Kar.1340. Its second head-note relied upon by him reads as follows:

"Held:

Simply possession for 12 years may not become adverse. The possession for 12 years be continuous possession and it must be hostile in its nature...... Possession of a person having no title in the property under invalid Deed of Transfer, his possession from the date of his entering into possession under that invalid Deed becomes prima facie adverse to that of the owner. When he continues in possession for a period of more than 12 years, title by adverse possession accrues in favour of that person as owner........ Possession of a person under an invalid Deed of Transfer after entering into possession of it, prima facie becomes hostile and adverse to that of the real owner when the transferee claims ownership on the basis of that invalid Deed and that on completion of continuous possession for the requisite period of 12 years or more, such person acquires title by adverse possession."

12. Smt.B.P.Radha, the learned Government Pleader for the respondent Nos. 1 and 2 submits that the records of rights at Exs. D4 and D5 clearly show that the land at Sy.No.99 measures 10 acres 30 guntas. She submits that the documents produced by the appellant are all cooked up ones. There is no document to show that the appellant has been in possession of the suit schedule property for 30 years continuously, which is the pre-requirement for claiming the title based on adverse possession. She submits that the record of rights produced by the appellant are only for a period of 10 years from 1963 to 1973.

13. The learned Government Pleader submits that the appellant has not discharged his burden of establishing that he was in adverse possession of the suit schedule property. The passing of the eviction orders imposing T.T. fine, etc., clearly show that his possession can be anything but certainly not peaceful. To buttress her submission, she relies on this Court's decision in the case of BASWANTHRAO SINCE DECEASED BY HIS LRS. Vs. RAJKUMAR reported in ILR 2009 Kar.1099. Para 13 read out by her, reads as follows:

"13. Adverse possession is a question of fact and in a claim of adverse possession, the title is not disputed; what is alleged is only his extinction. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. It is from that date if the plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession."

14. She submits that the Apex Court has come out very heavily on the land-grabbers in the case of MANDAL REVENUE OFFICER vs. GOUNDLA VENKAIAH AND ANOTHER reported in (2010) 2 SCC 461. The portions relied upon by her are as follows:

"47. In this context, it is necessary to remember that it is well-neigh impossible for the State and its instrumentalities including the local authorities to keep every day vigilance/watch over vast tracts of open land owned by them or of which they are the public trustees. No amount of vigil can stop encroachments and unauthorised occupation of public land by unscrupulous elements, who act like vultures to grab such land, raise illegal constructions and, at times, succeeded in manipulating the State apparatus for getting their occupation/possession and construction regularized. It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the Court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.

48. In State of Rajasthan v. Harphool Singh, this Court considered the question whether the respondents had acquired title by adverse possession over the suit land situated at Nohar- Bhadra Road at Nohar within the State of Rajasthan. The suit filed by the respondent against his threatened dispossession was decreed by the Trial Court with the finding that he had acquired title by adverse possession. The first and second appeals preferred by the State Government were dismissed by the lower appellate Court and the High Court respectively. This Court reversed the judgments and decrees of the courts below as also of the High Court and held that the plaintiff- respondent could not substantiate his claim of perfection of title by adverse possession. Some of the observations made on the issue of acquisition of title by adverse possession which have bearing on this case are extracted below:- (SCC P.660, para 12) 

"12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none. The decision in P. Lakshmi Reddy v. L. Lakshmi Reddy adverted to the ordinary classical requirement -- that it should be nec vi, nec clam, nec precario -- that is the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It was also observed therein that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus.

............

51.. In P.T. Munichikkanna Reddy v. Revamma, the Court considered various facets of the law of adverse possession and laid down various propositions including the following: (SCC pp.66 & 68, paras 5 & 8) "5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.........

8. .......... to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially 'wilful neglect' element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property." (emphasis in original)

52. In view of above discussion, we hold that the respondents miserably failed to establish that they had acquired title over the schedule land by adverse possession and the High Court was not at all justified in upsetting the orders passed by the Special Tribunal and Special Court."

15. Sri L.Harish Kumar, the learned counsel appearing for the respondent Nos. 3 to 7 submits that Government has formed the layout carved out of the lands at Sy.Nos.98, 99, 100 and 101 of Munnekolalu Village. The layout so formed is called Ashwathnagar Layout. He submits that the Government has allotted the lands to the landless people and that the Hakkupatras are issued to them in the year 1972. The respondent Nos. 3 to 7 have purchased the sites from the original allottees in the year 2012.

16. The submissions of the learned counsel have received my thoughtful consideration.

17. The first question that falls for my consideration is whether the appellant - plaintiff has laid the requisite foundation in the plaint for the plea of adverse possession. As held by Madras High Court in the case of SUNDARAVILLI vs. NARAYAN SWAMI, reported in AIR 2005 Mad.303, clear and distinct pleading of plea of adverse possession is necessary. This Court in its decision in the case of BASWANTHRAO vs. RAJKUMAR, reported in ILR 2009 Kar.1099, has expressed the considered view that the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant.

18. But the averments in the plaint in this case are unspecific, to say the least. Let alone furnishing the date or month from which the adverse possession is claimed, the appellant - plaintiff does not even furnish the year in which he or his father claim to be in adverse possession. Para 3 of the plaint reads as follows:

"3. The Plaintiff, through his predecessor in title i.e., his father, Sri H.M.Veerappa Reddy, unauthorisedly occupied the Government Gomala land, bearing Survey No.99 of Munekolalu Village, Bangalore South Taluk, to an extent of 3 Acres, which is specifically described in the schedule annexed to this Plaint at its bottom, prior to the year 1963. The scheduled land was brought under cultivation prior to 1963 and the Defendants made attempts to prevent the Plaintiff from cultivation. But the Plaintiff's predecessor in title holding-on to the lands.........."

19. Such vague pleadings do not meet the foundational requirement. Mere possession will not be sufficient to constitute adverse possession. There must be specific pleading and evidence. But in this case, both the requirements are lacking.

20. The second question that falls for my consideration is whether the appellant - plaintiff proves that his possession is peaceful, open and continuous? To examine this question, it is necessary to see how the appellant - plaintiff's case is spelt out in para No.4 of the plaint.

"4......the authorities went on levying heavy T.T. fine as a pressure tactics to see that the plaintiff voluntarily desert the land described in the schedule, so that it may revert back to the Revenue Department. .......the Defendants refuse to do so inter-alia, harassing the plaintiff every time threatening him that he would be forcibly evicted unless he voluntarily delivers the vacant possession to the State Government................."

21. The afore-extracted averments from the plaint indicate that the appellant - plaintiff has not been in peaceful possession of the suit schedule property. The averments regarding the imposition of T.T. fine by the Government on the appellant's father and harassment on the appellant to deliver the possession disentitle the appellant to claim that he has perfected his title based on the adverse possession. There must be an express or implied repudiation of the rights of the true owners and open assertion of the person in possession of the property to claim adverse possession. The Full Bench of this Court, in the case of T.N.ANANTHA BALARAJE URS vs. SMT.GUNAMBA NANJARAJE URS reported in AIR 2005 NOC 430 (Karnataka) has this to say:

"In order to establish ouster in cases involving adverse possession, the defendant has to prove three elements, viz. nec vi, nec clam and nec precario. In other words, he must show that his possession is adequate, in continuity, in publicity and in extent and adverse to the true owner. How and at what point of time, the defendant started prescribing hostile title, was for him to plead and prove, which in the instant case, he has utterly failed. Mere long possession for a period of more than 12 years by the defendant without intention to possess the suit land adverse to the title of the plaintiff and to the latter's knowledge cannot result in acquisition of title by prescription.............."

22. Further, it has come in the cross-examination of DW1 that in 1991, the appellant's father Veerappa Reddy had given an application for the regularization of the unauthorized occupation. As held by the Apex Court in the case of MANDAL REVENUE OFFICER (supra), such an application completely demolishes the appellant - plaintiff's case that he has acquired the title by adverse possession.

23. For the aforesaid reasons, I answer the second question against the appellant.

24. The authorities relied upon by the appellant's side do not come to its rescue in any way. Misc.Civil No.5297/2009 and 21964/2009 for the appointment of the Court Commissioner are also turned down, as the question of elucidating the matter is not involved.

25. Coming down heavily on the unauthorized occupants, the Hon'ble Supreme Court has this to say in para 13 of its decision in the case of JAGPAL SINGH vs. STATE OF PUNJAB reported in AIR 2011 SC 1123:

"13. We find no merit in this appeal. The appellants herein were trespassers who illegally encroached on to the Gram Panchayat land by using muscle power/money power and in collusion with the officials and even with the Gram Panchayat. We are of the opinion that such kind of blatant illegalities must not be condoned. Even if the appellants have built houses on the land in question they must be ordered to remove their constructions, and possession of the land in question must be handed back to the Gram Panchayat. Regularizing such illegalities must not be permitted because it is Gram Sabha land which must be kept for the common use of villagers of the village. The letter dated 26.9.2007 of the Government of Punjab permitting regularization of possession of these unauthorized occupants is not valid. We are of the opinion that such letters are wholly illegal and without jurisdiction. In our opinion such illegalities cannot be regularized. We cannot allow the common interest of the villagers to suffer merely because the unauthorized occupation has subsisted for many years."

26. On proper appreciation of the pleadings, evidence and on consideration of the legal position, the Trial Court has arrived at proper conclusions. Consequently, the appeal fails and the same is dismissed.

27. Now that the main matter itself is disposed of, nothing survives for any consideration of Misc. Civil No.1206/2009 for vacating the interim order. It is dismissed as having become unnecessary. No order as to costs.